Tag Archives: equality before the law

Human Rights, Inequality, political theory, US Politics

The Need for Compassionate Law

As 2018 comes to an end and the world looks to an increasingly uncertain future, it is worthwhile to reflect on the importance of compassion in public life.  On the one hand, it seems it should not be necessary to remind ourselves of the need for compassion, while on the other hand, there has never been a time when it is more vital to think about it.

When I speak of compassion I consider it to be similar to the emotion of empathy, which means the ability to identify closely with the feelings of another.  However, empathy is an emotion, while compassion is emotion plus action.  Empathy is personal, individual, and private.  When one experiences empathy, it is not necessarily expressed.  Many of us feel empathy for the plight of refugees, but few of us take any action based on those feelings.  Compassion is both an expression and an action, something that is a unique responsibility of the powerful.  It is the world’s 1% who, due to their elite position, have the most ability to exercise compassion.  Consequently, the world’s 1% (and if you live in a relatively wealthy developed country, you are part of this elite) uniquely bear the moral responsibility to exercise compassion.  The exercise and practice of compassion as an action is much rarer than the feeling of empathy, partly because wealth and inequality suppress the expression of compassion.  As the world becomes wealthier and more unequal, generosity declines.

Even more unusual is the embedding of compassion into the practices of a society, in other words, through its laws and institutions.  Are institutions capable of compassion?  Indeed they must be, because if social structures can be violent and oppressive, then it stands to reason that the opposite must also be possible:  institutions and laws can be written in compassionate ways, with compassionate ends.  It is the public exercise of compassion with which I am most concerned with, because it raises the potential for people to write compassionate institutions and laws.  Compassionate laws are necessary because, as suggested, individual empathy can fail – it is temporary, personal, individual and private.

Compassionate laws make it possible for persons to express and act on their feelings of empathy, because they can see that those feelings are socially elevated.  The Dali Lama talks about something similar in the Education of the Heart. Compassionate law can help to educate and give permission for people to act on their empathy.  To say that law can be compassionate goes beyond a ‘minimalist’ vision of law – that law is only there to level the playing field and justice means equal treatment under the law.   Even if law were able to do this leveling, an element of compassion is also essential to the achievement of equal treatment, since law must be attentive to justice.  In this sense, human rights law is essentially compassionate in its purpose. Based on observation of the current state of law in the US, it is clearly not able to even achieve the minimal goal of equal treatment or fairness.  The gap between law and justice can be reduced with adequate attention to the need for compassionate law.

The kind of compassion I’m thinking about should also be distinguished from altruism, although compassion relies on altruism, they are not identical.  Altruism, which is a kind of selflessness, or non-self interested attitude of generosity and giving, is a vital component of compassion, because altruistic motives reduce the temptation to use demonstrations of compassion for self-promotion.  Compassionate law is one very effective way to express altruism.  Indeed, compassionate law resists self-interested motives by moving altruism from the private to the public sphere and thereby removing the personal motives that might affect compassionate and just outcomes.

The enactment of compassionate law recognizes the innate inequality of human relationships, and works to proactively overcome those inequalities.

Recently, some thinking on giving and charity has been diverted from these concepts of compassion by a concern with effectiveness.  Rather than asking how can giving be more compassionate, the question becomes: how can giving be most effective?   As one proponent argues: “Instead of doing charity in a way that makes people feel good, effective altruists rely on rigorous, evidence-based analysis to decide how to donate money, where to donate, and which careers are most ethical.” I would argue that this is a diversion.  Effective altruists argue using a utilitarian measure:  what is good for the most number of people must be the best and most effective form of giving.  Using this algorithm, how might one decide between funding one individual’s education and funding a food program for thousands?  Probably many more people can be helped with the food program, but over the course of a lifetime what effect might a highly educated individual have, especially if they were able to achieve a position in which they could institute more compassionate laws?  The effort to reduce giving to an algorithm sacrifices the element of compassion and arguably undermines the goal of achieving more effective giving.  It’s not that effective altruism is wrong, it just kind of misses the point.  What is really changed, even if a larger number of people are helped by a given action?  There is a risk in reinforcing the status quo and ensuring that giving will continue to be necessary far into the future, violating the goal of achieving truly altruistic giving.

Compassionate laws are necessary because individual empathy can fail – it is temporary, personal, individual and private.

The enactment of compassionate law can, over time and with much learning, come closer to achieving lasting and effective results because it builds-in the principle of altruism by removing self-promotion from the equation.  In addition, compassionate law recognizes the innate inequality of human relationships, and works to proactively overcome those inequalities.  The human tendency to self-aggrandizement and acquisitiveness is worsened by inequality.  Inequality erodes people’s ability to be altruistic and even their ability to empathize.  Compassion is needed in a highly unequal world because it is effective, and it is effective because it is authoritative and self-reflexive.  The exercise of compassion invites reflection upon one’s own position and relatively good fortune.  The proponents of effective altruism are right that relying on natural generosity and emotion is insufficient to make for effective giving, but they are wrong to abandon the idea of compassion, which is needed now more than at any other time of history.  This season of giving, consider ways that you might contribute to the establishment of compassionate law, or if this is too ambitious, think about how you can help others express and act on their feelings of empathy, working together with others.  For starters, you might consider sharing this post!

 

Globalization, political theory, US Politics, World Politics

The Deep State or the Degraded State?

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Both the Left and the right have adopted the terminology of the Deep State to describe those hidden structures and relationships that permeate a state’s administrative apparatus and represent a set of semi-permanent structures that sit below the political level.  On both sides, the so-called Deep State has come to represent a fundamentally anti-democratic and secretive force operating out of public view and without accountability or transparency.   The argument from the left is that the revolving doors of Wall Street, the military and the bureaucracy have created a club of common interests that works towards favourable policies for the wealthy, including low taxes, de-regulation, militarism and regressive social and economic policies that penalize the poor. For the right, the deep state has become a force for endless bloat, overspending, over-regulation and failed global liberal projects of democratization and cosmopolitanism. In particular, the right has focused on the Obama administration’s expansion of healthcare services as a wedge to entrench even more state bureaucracies.

The polarized state of politics in the US means that there is a tendency on both sides to overstate the power, significance and uniformity of the Deep State.   In political science the term ‘deep state’ as it is presently used  does not have technical or analytical meaning.  However, political scientists sometimes made a distinction between 1. the state administrative apparatus; 2. the government, which changes frequently in response to democratic cycles; and 3. the semi-political institutions that are termed a ‘regime’, which melds the political and bureaucratic elements.  These three elements (the bureaucracy, the government, and the regime) form a larger, and much more permanent organization termed ‘the state’ which encompasses and supersedes all of these components by embodying a single legal entity from which the authority of all of the other parts flows.   The separation of institutional powers among the branches of government, and among the various bureaucracies, is permanently enshrined in the Constitution in order to prevent the abuse of power by any one of these components, all underpinned by the permanence of the rule of law.

The polarized state of politics in the US means that there is a tendency on both sides to overstate the power, significance and uniformity of the deep state.

The fact is, the directly ‘democratic’ components of the state are relatively shallow, since the temporary election of a government on top of a large permanent experienced bureaucratic apparatus cannot, of necessity, institute revolutionary changes in the short term which it is allotted.  This transience of the government is by design. Changes are always contingent on the maintenance of popular support., because any program of policies and institutions must be vetted by the people periodically. The permanence of the administration and the transience of government are complementary forces which maintain stability by the periodic checks and balances provided by democratic elections, which provide sufficient flexibility for the state to maintain relevance and responsiveness to the needs and wishes of the people. This is one key way in which a democratic state is distinguished from an authoritarian one, since in an authoritarian state like Pakistan or Turkey (as it is becoming) the Deep State acts wholly independently IMG_20161116_210123of the electoral process and has much greater power as a result.

Clearly, something has gone wrong with this careful balance.  As Eisenhower knew well, the ‘military-industrial complex’ was not made of and by the state, nor did it arise from state action, but was the main threat to the state.  When Eisenhower warned at the conclusion of his term about the creeping power of the ‘military-industrial complex’, he was referring to the entrenchment of relationships among the component parts that had become a semi-permanent structure of interests antithetical to democracy. Similarly, Mike Lofgren refers to the Deep State not as “a secret, conspiratorial cabal” but rather as “hiding mostly in plain sight, and its operators mainly act in the light of day.” As he says “it is not a tight-knit group, and has no clear objective. Rather, it is a sprawling network, stretching across the government and into the private sector.”  This complex is composed of a loose network of relationships among ruling elites from the commercial, financial, military, scientific and governmental sectors.  In other words, it is both public and private in origin and nature.

So, what is going on? First of all, the transfer of power from one government to the next has fundamentally broken down, not only because of excessive partisanship, but also due to social divisions of interest within the ruling elites, whose ability to maintain a common interest has been compromised.

Second, this set of alliances threatens the state writ large, because it can potentially affect the more permanent institutions without reference to the vetting of the periodic democratic checks of elections.  The problem with these relationships is not that they are secret (they aren’t) nor that they are hostile to social, political and economic progress (because they have been and can be progressive) but because they have failed in their most important function: to create and maintain legitimacy.  Until recently, this admittedly problematic arrangement could be relied upon to organize and underpin (or at least, not obstruct) peaceful and orderly transitions of government that, if not democratic, at least could be said to command the legitimate support of sufficient numbers of the public to maintain the authority of the state itself.

Finally (and you can probably see where I’m going here) the system has been broken by an inability of the ruling elites to agree on the fundamental direction of the state.  The state itself is not broken, nor is the Constitution, nor (yet) is the democratic mechanism for transferring power between regimes.

What could once be a strategy for election, must now be a strategy of grasping for the broken pieces of the state that have been set adrift and unclaimed.

What is broken is the legitimacy of the state, its ability to rally support and meet demands, the most basic functions of statehood.  The problem is not that the Deep State is a monolithic and autonomous shadowy force acting against the democratic will, the biggest problem is that the state is being broken apart into its component parts due to the inability of the ruling elite to maintain legitimacy and enable a peaceful transition of power.

What could once be done in public must now increasingly be done behind closed doors. What could once be said openly must now be cloaked in distraction and lies. What could once be a strategy for election, must now be a strategy of grasping for the broken pieces of the state that have been set adrift and unclaimed.  The real threat is to the state, in its larger, wider meaning as a social, political and legal community of common interests and values.

 

 

 

 

Global Political Economy, US Politics, World Politics

The ‘Myth’ of Taxpayers’ Rights

In April, US Representative Markwayne Mullin (R-OK) had a tough town hall.   Upset about the Trump legislative agenda, constituents called Mullin to task as a public employee.  His unscripted response was to complain about their questions and to argue that the idea that taxpayers pay his salary was ‘bullcrap’.   He went on: “I pay for myself…I pay enough taxes where before [sic] I ever got there, and continue to for [sic] my company and pay my own salary.” Mullin further claimed that his job as a public servant was an ‘honor’ and that his wealth and position as a business leader gave him a special freedom and independence from government.  This independence from financial ties, in turn, bolsters his credibility as a critic of government encroachment.

Is Public Service a Contract?

His argument opens an intriguing window on the way that public service (and, by extension, government) is being recast.   While there is a striking & stark contradiction between claiming to both represent taxpayers and to be free from accountability to them, Mullin kind of had a point—–Do ‘taxpayers’ (as a group, and aside from ‘citizens’) actually have rights? Is public service a kind of contract of service, in which representatives agree to provide a necessary ‘good’ in exchange for a fee (salary paid by taxpayers)?

I want to say no, that is not the essence of public service. Public service should not be reduced to little more than a commercial exchange or contractual relationship, it is also a relationship of trust.  Logically, then, to some extent I (gulp) agree with Mullin that it is a service and a privilege.  This is not to say that there is no contractual dimension to public service, however.  Ever since Rousseau wrote about the Social Contract in the 18th century, governments and citizens have expected a relationship of mutual accountability.  For Rousseau, however, the social contract was a metaphor for the larger relationship of mutual obligation that government rested upon; in particular the obligation of the state to its citizens. Therefore, the relationship between the public and public servants does have a contractual dimension. So, if it is not only a contract, what else is it?

The Origins of Taxpayers’ Rights

Prior to the widespread institution of income taxes as a primary revenue source for modern administrative governments, most governments gained the vast majority of their revenue from taxes on trade.  The famous Boston Tea Party protest was against the unfair tax rate on a commodity (tea) and the legitimacy of the Crown’s right to tax commerce without accountability to traders.   Eventually, of  ourse, taxes became imposed on other dimensions of economic activity, include labour and capital gains.  What drove governments to reach beyond trade to enrich their treasuries was war. War required governments to raise funds to field military forces at a competitive level to other states.  War also brought conscription, wherein the sons of the poor were required to invest their lives in the security of the state.  Conscription without representation was just as untenable as taxation without representation, however. With new demands from the state, the state also had to provide new opportunities for returning veterans, which in turn necessitated higher taxes to provide housing, care, education and a safety net.  In truth, the extension of the tax base to all income earners relieved business of the bulk of the tax burden, and business benefited from the security provided by the state.  Security provided great opportunity for economies to grow and globalize.

Paying taxes does and should produce a set of obligations on the part of the government to respect the public interest

Asking the people to expend blood and treasure on war meant that there was an implied responsibility on the part of the state to provide social services to the people.  Taxpayers could expect that public servants would expend public treasure for the public good, not for the interests of business alone.  Underlying the arrangement was a semi-contractual kind of language: taxpayers could expect to be able to exercise their democratic rights to ‘check’ irresponsible governments; and governments could expect citizens to be devoted to the support of the state in war, and in peace.

Clearly, this calculus has changed.  The reasons for this are numerous, not least that conscription has been eliminated and war is fought very differently, but it is still undeniably the case today that paying taxes does and should produce a set of obligations on the part of the government to respect the public interest.

Taxpayer Rights Versus Taxpayer Interests

Paying taxes does not only create a contractual relationship, it also binds taxpayers to their community, giving them a stake in a common future and ensuring thier engagement in public life.

This is not, however, the same as saying that taxpayers per se have rights, over and above their interests as members of the public.   A ‘right’ implies a claim to greater respect and recognition over and above the interests of other groups.  A ‘right’ is a trump card that all other interests, and government, must respect.   Taxpayers as a group are entitled to a voice and to express their interest as a group.  An ‘interest’ implies a competition in the marketplace of ideas in which any one group’s desires may reasonably and fairly be considered over and above others, within the framework of laws that otherwise encourage respect for fundamental rights. Taxpayers, like retirees, patients, business owners, students, workers, and other groups, have interests, but not rights. Ethnic minorities, religious minorities, the disabled, the press, and the public, on the other hand, have rights that may override taxpayers’ interests, and that may necessitate that government prioritize these considerations over others.

The Recasting of Government in the New Agenda

What the new agenda overlooks is that paying taxes does not only create a contractual relationship, it also binds taxpayers to their community, giving them a stake in a common future and ensuring thier engagement in public life. This is what makes Mullin’s position so problematic. Mullin is not making his defence from the standpoint of a citizen with a common stake in the public good, nor even as a servant (despite his calming words about ‘service’ and ‘honor’). His defence is one of a taxpayer, and more particularly, as a business owner.  Ultimately the whole conversation ends up being an argument between taxpayers, not citizens.  Arguing that taxpayers have unique contractual rights essentially gives them permission to disengage from the social contract as a whole, especially those parts of it that don’t directly serve their interests.  In turn, and by extension, governments are then relieved of their obligations to the public, including the provision of security and welfare.  While taxpayers have the democratic right to defend their interests, they do not have the right to disrupt the social contract to this degree. When The Fraser Institute and the Canadian Taxpayer’s Federation argue that taxpayers either work for themselves or for the govenment, they feed in to the idea that taxpayers have special rights.

When citizens at the Town Hall demand that governments should respect taxpayers, then decision makers should listen. However, taxpayers should not have a louder voice than citizens.  Taxpayers ‘rights’ should not be extended to the degree they disrupt the larger social contract.  If they do, then the democracy is at risk of eliminating itself by undermining the contract of service and trust, and, incidentally, by bankrupting the state.  There is some evidence that the US has already begun to do this.  Since the language of taxpayers’ rights essentially marginalizes any public interest from the conversation, it is incapable of constructing a new social contract.  The language of taxpayers’ rights then becomes essentially self-destructive, since taxpayers will end up undermining, in the end, their own claims to the rights and benefits of citizenship.

Human Rights, Inequality, US Politics, World Politics

6 Questions for the Social Academic Disciplines after the US Election

Its been a tough time for practitioners of what I’ll call the Social Arts & Sciences, and for analysts  of political affairs. For example, reputable pollsters were totally wrong in predicting the election of 2016, pretty much destroying any confidence in the utility of analytical methods like survey research. Of course, most consumers of polling data can’t be expected to know the difference between the use and interpretation of quantitative data for research, and the kinds of reckless extrapolation that posed as expert and authoritative analysis leading up to the election.  So, it seems that social scientists have some tasks to do. As a community of thinkers and teachers about social affairs, the Social Arts & Sciences have a unique set of tools for understanding world events that can shed light on important questions. Like any tool, the value of analytical methods is only as good as the use they are put to.

Illuminating who we are as social beings, and why we do what we do, can bring improvements to our shared experience by enabling changes in social behaviour through learning, but only if done carefully and deliberately, and with a great deal of humility and caution.  I’d suggest these following lines of inquiry, but what I can’t do is help sounding like a stuffy, elitist, out of touch intellectal to some.  This is an occupational hazard, but one I’ll have to live with. Sorry about that. Here are some lines of inquiry suggested by recent events:

1. Political Science

Ok this one’s mine.  Please, political scientists, explain clearly the difference between democracy and liberal democracy.  Liberal democracy is a paradox, since the rule of law and constitutional protection of human rights necessarily limits democratic rule. Another way to think about it is that minority protections make democracy possible by ensuring that the people do not abuse their power, and in the process, potentially vote themselves out of power.  Law needs democracy and democracy needs law. They are inextricably bound together.  The rights of minorities are integral to the maintenance of democracy, not an add-on that can be jettisoned in the name of the majority or for the sake of convenience. Protecting minority rights is what enables democracy to function, and to sustain itself. Compromising minority rights inevitably compromises democracy itself.  Protecting minority rights protects everyone.

While we’re at it, please explain what polls actually measure, what they don’t measure, and what their limitations are (and I don’t mean margin of error). Everyone: (yes that means you)…I’m sorry, but you have to take statistics.  We all did it, so you have to too. There.

I’m throwing questions about the Electoral College to the historians.  It makes no sense.

A bonus suggestion for Philosophy:  help everyone understand paradoxes better.

2. Gender and Womens’ Studies

I would like to understand better the dynamics of ‘alpha male’ social behaviour.  I don’t even know if that’s a thing, but it kind of looks like what we’ve been observing. If I’m wrong, can you please school me in another way of understanding why so many thinking, otherwise respectful people (men and women both) willfully compromise themselves and their values when faced with powerful but flawed male figures?  An extra job for sociologists: help us truly understand the centrality of identity to pretty much everything.

3. Psychology

Following the 2008 economic crisis, a new subfield of Economic Psychology flourished to help explain why otherwise rational actors made irrational decisions, even against their own interest, and under what circumstances.  I think we need more of that.  Can psychology help us understand  more about the dynamics of voter decision making,  the processes of skapegoating, and the emergence of in-group and out-group division?  What is the role of emotion as a motivation for decision making?   We know that strong emotion can interfere with rational decision making,  but how might this dynamic work at a community level?

4. History

Please keep telling analogous stories from the past to help give context to the problems of the day.  Each generation still generates its own version of problems and solutions, but if people saw their issues as common and not unique, they might be better able to think creatively about how to apply the wisdom of the past to the present.  Also, please focus as well on the peaceful, constructive periods of history where nothing much happened.   The boring bits are what we can learn from.   As well, can you please help us understand better what happens during times of accelerating and rapid change so societies can learn to be more adaptive?  I have a feeling we’re going to need that.

5. Communications

Ok so you’ve got lots of work ahead…..propaganda has gone viral, driven not by large organizations but by individual users.  Consumers are now transmitters.  Conversations are immediate and global.  Has the speed of communication outpaced democracy?   Please talk to the psychologists about the effects of this on thinking, can we know more about how our social lives and worlds create our  reality?

6. Artists and Writers

Please keep reminding us what it’s like to be someone else.  Touch our hearts with stories of people and places different from our own experiences, so that we can develop empathy and awareness, even for a minute.  Teach the teachers how to convey this effectively. Educate all of the social scientists about the importance of empathy to learning and growing and advancing knowledge about the world and ourselves.  Ultimately, this is the only way humans truly learn.

Globalization, Human Rights, Inequality, Politics in Canada, US Politics

The True Meaning of Differentiated Citizenship

090913_0254_TheTrueMean1.pngSometimes the language that we use as political scientists is regrettable in its implications. For example, the definition of ‘differentiated citizenship’ according to a leading introductory text to Canadian politics reads as follows: “The granting of special group-based legal or constitutional rights to national minorities and ethnic groups” (Mintz, Tossutti and Dunn 89). While accurate, the use of the term ‘special’ has many unintended implications. Who is ‘special’ and who is entitled to ‘different’ treatment by government?
For one thing, to say that a group or individual receives ‘special’ treatment is to imply that every other group is not special. Or, to put it another way, it is to imply that a group is singled out from the otherwise equal treatment that they might be entitled to receive by virtue of being equal members of the community. It assumes that the community at large includes other groups which may be equally entitled to special treatment were it not for the unique qualities which set the ‘special’ group apart. Equality before the law is both an operational concept and an aspirational standard.Using the term ‘special’ to describe a group singled out for differentiated treatment suggests that everyone else is already treated equally under the law, that equal legal treatment is in fact a reality, and not also an aspiration yet to be achieved. Under the assumption of equality, special treatment is, by definition, discriminatory. Discriminatory treatment technically only means the same as ‘special’ treatment, except for the fact that it implies a harmful result for the group being singled out. When the result of special treatment is discrimination, it is rightfully condemned. Discrimination on the basis of race, gender or ethnicity, for example, is condemned in a democracy not primarily because it constitutes special or differential treatment, but rather because of the negative effects of the judgments that tend to be made, most often based on involuntary or ascribed characteristics. The response to ‘special treatment’ is to question the basis for unequal treatment rather than to condemn all forms of harmful discrimination. Why the knee-jerk reaction to ‘special treatment’? After all, governments identify groups for a variety of special programs and services all the time. Groups are defined by age, income levels, geography, occupation, health status, and marital status. Many of these categories are based on involuntary characteristics, or at least, characteristics that are extremely difficult to change. Northerners or people who live in rural areas are entitled to unique job training or assistance for moving expenses. Fishers in the Maritimes are treated distinctly from other occupations with respect to qualification for EI benefits, young people are targeted for special job training and employment programs, and government services like healthcare are often offered in languages other than the two official languages.
090913_0254_TheTrueMean2.jpgIn truth, as discussed in the last two blog posts, equal treatment is as elusive as the abstraction of ‘equality’ itself. One is tempted sometimes to ‘test’ equality by imagining a ‘reverse onus’. In other words, we might try to test the extent of equality by asking ourselves how a given situation might be if the positions were reversed. If a black woman and a white woman are ranked equally on a college entrance application, then ‘all else being equal’, the chances of success should be equally distributed (50/50). If this is indeed true, then the white woman and black woman are being equally treated. In reality, we can more effectively test the presumption of equality by looking at outcomes. If an equal chance of success really does exist, then the number of black successful women should be roughly proportional to the number of black women in the population as a whole, and the same with the number of white women. Success is clearly not distributed proportionally among these racial groups. Because the outcomes do not support the idea that such equal treatment exists, it is unfair to apply the ‘reverse racism’ test. Treatment that might be appropriate for one group would not be appropriate for the privileged group. The two situations are not comparable. Discrimination can still be shown to exist, as the story of Yolanda Spivey reveals. Spivey, a black woman, reportedly modified her online job profile to appear ‘white’, changing her name and racial identification, but keeping all of her other information the same, including qualifications,

experience, and work history. She received many more employment enquiries as a white woman than as a black woman. The experiences of black and white people are not comparable, and so these groups should not be considered as if they were treated equally. Of course, more study and data is needed to determine the extent, nature, and form of discrimination in society. Nevertheless, differential treatment, and even differentiated citizenship, is justifiable in order to move toward equality of opportunity for all. Until equality can be demonstrated in outcomes, it should be seen as an aspirational goal, and not assumed to be already in place.